Due to this failure, as Guy Benson noted yesterday, the White House is now leaving open the possibility that Obama will delay enforcing the individual mandate, probably by administrative fiat. But would such a move be legal?

If done right, yes, Obama could probably delay the indidivual mandate unilateraly. Nicholas Bagley, an assistant professor of law at the University of Michigan Law School, and Austin Frakt, a health economist with the U.S. Department of Veterans Affairs, explain:

The secretary is explicitly empowered in yet another provision of the law to “establish a program” for determining “whether to grant a certification” for a hardship exemption. That gives Sebelius latitude to craft sensible certification rules for the exchanges.

As things stand, the rules the secretary has put in place provide for an individualized application process. But nothing in the law prevents her from tweaking that approach. If necessary, she could draft a new rule instructing nonfunctional exchanges -- including the federally operated ones -- to issue blanket certifications on behalf of all of the uninsured in their states. With those blanket certifications, the penalty would be waived -- and all without congressional action.